Wednesday, November 15, 2017

For Lawyer Who Won Landmark Absentee Case, $1,084 Bill Is a Slap in the Face

David Roland, right, won a key victory that helped sweep state Rep. Bruce Franks (D-St. Louis) into office. Now he's left holding the bag.

Last year, attorney David Roland won one of the most consequential Sunshine law cases in the city's history. In response to Roland's lawsuit against the St. Louis Board of Election Commissioners, a judge opened up absentee ballot applications to public inspection — a ruling that paved the way for Roland to make the case that the Hubbard family had been abusing the absentee process.

That argument resulted in the judge tossing out the narrow victory that incumbent state Representative Penny Hubbard (D-St. Louis) had won in the Democratic primary against former Ferguson activist Bruce Franks Jr. and ordering a special election. And that special election resulted in Franks toppling Hubbard — earning a seat in Jefferson City and becoming, in the process, a formidable force in city politics. Approve of his tactics or don't — but you can't deny Franks' impact.

And so it's more than a little bizarre that, last month, Roland's Sunshine law lawsuit wrapped up with a ruling that not only determined that the elections board didn't have to pay Roland's legal fees — but also concluded with an order that Roland pay the board.

St. Louis Circuit Court Judge Jason Sengheiser's order, issued October 16, found that the board's denial of Roland's request for absentee ballots was not necessarily a purposeful violation of the Sunshine law. Therefore, the board didn't have to pay fines of up to $5,000, much less Roland's legal fees.

But then Sengheiser added the kicker — a brief sentence that, initially, media outlets (including, yes, this reporter) didn't even notice. Roland would have to pay the elections board's costs. He's now on the hook for a bill of $1,084.50.

The board, naturally, didn't fail to notice the kicker; it promptly submitted its bill on October 19.

Early this morning, Roland filed a notice of appeal. He is asking the Missouri Court of Appeals to reconsider Judge Sengheiser's ruling.

He wants a decision that says the board's rejection of his request was, in fact, purposeful — the way the Sunshine law is written, he notes, any error is to be in favor of transparency. By going the opposite way, he argues that the board stepped away from mere confusion over how to handle the absentee applications and into intentional flouting of the law.

But beyond that, he wants that $1,084.50 assessment to be lifted.

There is, of course, the principle of the thing.

"It is difficult enough to decide to take on a Sunshine law case when you know that the likelihood you can recover expenses is low," he says. "That you can end up with a judgment against you, even in a case that you win, removes whatever incentive you may have to pursue these cases. For a public interest attorney, it severely complicates the calculation of whether we can take these cases on."

And there is also, he admits, the reality of that bill. For a big firm — heck, even for a government agency — $1,000 might be a drop in the bucket. Someone else will be footing it, after all.

But Roland is a public interest lawyer who freely admits that he runs his Freedom Center on a shoestring. A bill of this size, he says, is "devastating."

"That's a huge penalty for us," he says. "It's definitely a cold shower."

Roland says that Missouri's Sunshine law is crafted well in its intent to ensure that government agencies are transparent and open with records sought by the public. But in reality, when bureaucrats deny access, even when the violation seems clear-cut, gadflies and journalists alike often think twice before resorting to legal action. It can be hard to recoup costs — and actual fines from judges are all too rare. (Roland's victory in Cole County last month, which resulted in $12,100 fine against the county's prosecuting attorney, was a huge exception.) No one should doubt the chilling effect of the expense involved in litigation; that it could mean further costs even beyond one's own legal bills takes things to deep-freeze level.

And this case is even stranger. This was a case Roland won, after all — and there was never any argument made, either for or against, that he somehow misstepped or overreached in a way that should result in a penalty.

The new judge didn't live through the sturm and drang of the Hubbard dynasty's final gasps and the board's abetting of it. And so perhaps he didn't share Bush's disapprobation for the board's actions. Perhaps he wasn't dwelling on the fact that, after the records were forced open, another judge found that they revealed "serious abuses of the law" — abuses that occurred on the board's watch and under its supervision. Maybe then he wouldn't be so quick to dismiss the board's denial as a mere mistake.

Still, if this decision is allowed to stand, and David Roland is forced to pay $1,084 to the board that nearly blocked him and his client from learning the truth, we'll all be the victims. Not just Roland, not just Bruce Franks, but anyone who cares about openness, transparency and clean elections.

Anyone who cares, in fact, about Sunshine.
Sarah Fenske is the editor in chief of the Riverfront Times. Follow her on Twitter @sarahfenske or email her at sarah.fenske@riverfronttimes.com.